The Public Sector Equality Duty (PSED) under s.149 Equality Act 2010 requires public authorities, in the exercise of their functions, to have “due regard” to the need to eliminate discrimination, harassment, victimisation and to advance equality of opportunity and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it. One of the protected characteristics is “religion or belief”.
On 13 November 2014, Leicester City Council passed a non-binding resolution concluding with the words:
“Therefore, Leicester City Council resolves, insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank until such time as it complies with international law and withdraws from Palestinian Occupied territories.
Furthermore, Leicester City Council continues the example of good community relationships by developing a sustainable city, promoting harmony and respect for all people to live in a neighbourly way.”
Jewish Human Rights Watch brought an unsuccessful petition for judicial review, asking the Divisional Court to quash the resolution. The subsequent appeal was also unsuccessful.
In R (Jewish Rights Watch, t/a Jewish Human Rights Watch) v Leicester City Council  EWCA Civ 1551, the appellants argued that the resolution had singled out Israel for criticism and that, in agreeing it, the Council had failed to consider its effect on the Jewish community in the UK and in Leicester, in breach of its Pubilc Sector Equality Duty (PSED). The sole ground of appeal was that the Divisional Court had erred in concluding that there had been no breach by the Council of the PSED . The Court of Appeal, agreeing with Divisional Court, held that the Resolution and the transcript of the debate which preceded its adoption made it clear that the councillors had in fact, had due regard to the matters set out in s.149 of the Equality Act 2010 and had therefore satisfied their obligations under the PSED.
Sales LJ concluded that the PSED in section 149(1) of the 2010 Act did apply to the passing of a resolution by councillors as the relevant organ of the Council ; and
“… in the present context, councillors were rightly well aware that adoption of the resolution might have an impact on community relations, so they were not entitled to leave the PSED out of account and give no regard to the matters set out in section 149(1) .
“The application of the PSED to the adoption of the resolution does not infringe upon rights of political free speech, save only that the Council, acting by the assembly as a whole, has to comply with its obligation under section 149(1) … Individual councillors are not, in their capacity as such, personally subject to the duty. They are free to express whatever political opinions they like. The application of the PSED to the Council does not prevent them from doing that…” .
It was clear from the terms of the proposed resolution that the councillors had had due regard to s.149(1). The resolution had referred to the need to eliminate discrimination, harassment and victimisation in relation to any community and to foster good relations between persons from different faith and ethnic groups. “Councillors voting on the resolution clearly did have regard to those matters”  and that met the test of “due regard” in the circumstances . Moreover:
“Calling for boycotts of goods is a well-known gesture of political solidarity with oppressed groups overseas, as illustrated by calls for boycotts of goods from South Africa during the apartheid era. In any event, the resolution expressly stated that the Council recognised the right of existence of the State of Israel, so clearly was not being adopted as part of a wider antisemitic movement…” .
Having summarised the debate in the earlier part of his judgment, he concluded that
“The importance of maintaining good community relations in Leicester was a major theme in the debate. Explicit reference was made to the Jewish community, and how they might feel. Clearly, the thrust of the debate was that it was important that they should not feel the resolution was aimed against them, as Jews … on any fair reading of the transcript of the debate it is clear that the elected councillors had due regard to the matters referred to in section 149, as a matter of substance” .
One interesting and useful part of the judgment is that it states that the PSED does not apply to individual Councillors and does not affect the right of political free speech. There have been cases of Councillors being banned or disciplined on the basis that their words or actions are in conflict with PSED so this judgment should improve free speech rights. It might also be relevant in cases where Councils or similar bodies refuse to let premises for ‘controversial’ events
There was a similar case some years ago in California, the City of San Francisco passed a resolution criticising the Catholic Church over its alleged mistreatment of homosexuality. The Catholic League brought an (ill-advised) case claiming that the resolution breached the freedom of religion clause in the 1st Amendment; the Court however held that San Francisco Councillors had the right to freedom of speech also set out in the 1st Amendment
Pingback: Law and religion round-up – 8th July | Law & Religion UK